During the past month I have had the good fortune to present to and learn from judges and business in a few different webinars and programs. These presentations underscored how an old idea coined approximately 30 years ago by Mark Galanter is still a goodie and gaining greater currency in the courts – “litigotiation.” With the evolution of judicial case management practices in state and federal courts, litigators would be well served to recognize this evolution and adapt accordingly.
In a recent article, co-authors Hon. John C. Foster, Richard L. Hurford, and Douglas L. Toering reviewed the statute establishing Michigan's business courts, the rationale behind it, and a comparison of arbitration, as well as offering a protocol for pre-litigation mediation.
Effective joint sessions just don’t happen by giving parties carte blanche to talk; like all other aspects of the mediation process preparation and planning are essential. Two of the fundamental purposes of the joint session are to persuasively impact the opposing party’s best alternative to a negotiated agreement (“BATNA”) and enhance the effectiveness of the discussions that will take place between the mediator and each party during subsequent private caucuses.
A mediation process option in danger of going the way of the dinosaur is the joint session. Lawyers generally hate them and often deem them counter-productive and a waste of time – “Can’t we just get down to business, go to our respective rooms, and start the negotiation process.” While some mediators may agree, virtually every well-respected mediator training program encourages the informed, selective use of joint sessions.
Effective February 1, 2015, the United States District Court for the Eastern District of Michigan implemented new Local Rules dealing with Alternative Dispute Resolution that significantly differ and expand upon the predecessor Local Rule. The replaced LR 16.3, adopted in 1998, dealt solely with “Mediation” (now called case evaluation) and incorporated the process provided in MCR 2.403. These new LRs will significantly impact the dynamics of litigation in the Eastern District and litigators should fully familiarize themselves with these rules, their impact on litigation and ADR practices, and how the LR and the selection of the appropriate neutral might be best leveraged to sub-serve the interests of their clients.
